At the inception of the Index, IP regimes of 11 countries were analyzed. The latest Index analyzed 38 countries – representing 85 % of the world’s GDP. The Report was an emotional response to the prevailing international perception that IP was in U.S.’s interest.

It was an attempt to cut – through that debate by placing hard data on table. Countries were evaluated based upon 30 criteria for enabling fact- based progress.

Tom Donohue’s Bombastic Speech on the Importance of IP :

” IP is imperative for alleviating poverty, hunger and other indices of low economic growth.”

Yeah! Though rare but such statements are expected from the head of an organization representing the largest U.S. corporations.

I want to ask this gentleman, had it not been for generic drugs, how possibly could exorbitant patented drug prices aid in poverty alleviation in the under – developed and developing countries? And a stringent IP regime that motivates breeders ( multinational life-science corporations) to produce high – yielding varieties at the cost of small scale farmers enable in curbing hunger?

While I’m not undermining the importance of IP, this sort of pompous rhetoric is overwhelming.

Other points made by him stressing upon the importance of IP ( justifying the need for an Index of such a nature) and my rebuttals are :

(a) Without IP protection, ideas would never translate into products :

Are we all not aware that most of the modern age inventions (steam ships, railways and gas lamps) dating back to the Industrial Revolution were not an outcome of the patent system ( for more on this, read here, here and here – Pg. 351).

(b) IP is imperative for a worldwide commitment to growth, innovation and technology and the Index indicated where countries stood on innovation :

If this were true, why are countries such as Algeria, Indonesia, Eucador ranked behind India in the Global Innovation Index 2015 even though they fare better than India in the Index. The relationship between IP and innovation cannot be discounted. However, the premise that IP was the sole parameter for unleashing the innovative capacity of a nation is misplaced.

This is corroborated by CII’s recommendation to drive innovation in India. IPR is certainly one of the areas where India has room for improvement. At the same time, attention to following would go a long way in untapping it’s innovative capabilities –

(a) Higher education

(b) Industrial innovation

(c) Entrepreneurship

(d) Easing the business environment

(e) Infrastructure development

Professor Meir Pugatch’s Insights into the Report :

Following are noteworthy points –

(a) From next year onwards, IP regimes of 45 economies shall be analysed.

(b) While countries had progressed (particularly the ones in the top most cluster), the BRICS nations were stagnant. He was optimistic about India’s IP regime improving.

(c) Patents (particularly pharma related) were not the only contestable area in the IP sphere. Debates often revolved around patents but there were other areas that required attention. The Index was not merely about a particular area of IP but a summation of all the facets (patents, copyright, trademarks, trade secrets and market access).

(d) Statistics indicated a strong relationship between IP and innovation.

(e) The TPP was the most important standard of the 21st Century and it was worthwhile to keep an eye on post – TPP developments.

(f) With the statistics tabled, it was high time for debates on the relationship between IP and economic growth to cease.

To my utter pleasure, question on the interplay between the Index and the Special 301 was raised by someone from the audience. ( This has been on my mind since a while now!). To which Prof. Pugatch’s response was a a difference in origin and source of the two instruments. Though there were many overlaps between the two, the Special 301 was political in nature while the Index reflected the U.S. corporate sentiment (being the views of the members of the Chambers of Commerce). The Index relied upon the Special 301 as a source and was much wider in scope.

Apart from talking about the role of IP in their respective industries, they acknowledged the crucial role played by the Index in international IP policy. It was not merely an academic exercise but a tool to engage in a dialogue with foreign governments and partnering institutions.

Anissa Brennan pointed out at the Index’s deficiency to capture every parameter. Camcording was one of such parameters.

IPRI focused on 3 areas ( overall IP protection, copyright and patents) while the Index focused on 6 ( patents, copyright, trademarks, trade secrets & market access, enforcement and ratification to international treaties). The PRAcollected data from indirect sources (mostly international organizations such as the IMF, World Bank, OECD and WIPO) while the GIPC relied upon direct sources.

CONCLUSION :

For any keen follower of international IP policy, the release of the Index is a big event. More than watching the two hour video ( except for Tom Donohue’s portion) , I would recommend everyone to read the Report.

I’ve skimmed through the first 52 pages, which enunciates the methodology and some pertinent trends. In my next post, I’ll bring forth some substantive comments on it.

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It’s only today that I’ve started digging my nose into the unabridged version of the Report. And I start corrected to that there is indeed a cursory mention about the Draft IPR National Policy which is addressed as the National IP Rights Strategy (Page 109 of the Report).

Before going in for publication, the referenced National IP Rights Strategy document (actually the Draft National IPR Policy) was not released and thus finds no place in the Report.

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As a soft IP lawyer, I want to highlight two events that have caught my fancy –

(I) Remixes, First Sale, and Statutory Damages: A Presentation of the U.S. Patent & Trademark Office :

The Copyright Society of the U.S.A. is organizing this presentation where Shira Perlmutter, Chief Policy Officer and Director for International Affairs at the U.S. Patent and Trademark Office will present the findings and recommendations of the recently published White Paper on Remixes, First Sale, and Statutory Damages by the U.S. Department of Commerce’s Internet Policy Task Force.

The CSUSA presentation will not be recorded and I’ll be unable to attend it due to a clash. However, the webcast of the WIPO Conference shall be webcasted and I’ll run though the transcript for the benefit of all readers. I’m actually pretty kicked about the WIPO Conference given the impressive credentials of the panelists.

INTRODUCTION :

The public hearing for the 2016 Special 301 was held on March 1, 2016 at the USTR. As much as I had wanted to, being a weekday I was unable to attend it. As of today, the recording and the transcript of the hearing has not yet been released by the USTR (Perhaps today being the last day for submission of the supplemental information including written responses. For a timeline of the 2016 Special 301 Process, visit here).

From whatever is available in public domain , I’ve built up a picture of the public hearing. I’ve highlighted some pertinent points which have an influence in determining India’s designation under the Report. (For more on Special 301, see my posts here , here and here)

THE HEARING :

Traditionally, the public hearing commences with foreign governments designated as Watch List (WL) countries pleading to the USTR to get off the list.

Governments of Bulgaria, Czech Republic and Ukraine had ten minutes each to testify. Not being designated as WL, Government of India did not testify.

TESTIMONY :

Only information pertaining to testimonies of AFTI, KEI, Internet Association, UACT and USIBC is available. I’ve tried summarizing their arguments (the portion focusing on India) –

(i) AFTI – Not to my surprise, it testified that India should be placed on PWL with a rigorous Out- Of- Cycle Review. Considering it’s members (or rather cosy coterie), it played the usual rhetoric of – (a) Weakness in India’s copyright system (b) Use of compulsory licenses and (c) Additional patentability criteria.

(ii) KEI – Jamie Love testified on PhRMA’s, BIO’s and GIPC’s written submissions to the USTR which lashed out at India’s pharmaceutical patent regime. His defensive statement goes well with the proponents of access to affordable healthcare –

“A number of the submissions supported by the pharmaceutical industry have targeted India. India is important both because it is a large country with more than a billion persons, and because it is frequently looked to as a supplier of affordable generic products in other countries.

KEI is working on compulsory licensing cases in several countries, and like others will look toward India to play a role in providing a supply of products.“

He also made a cursory remark on sourcing prostrate cancer drug Xtamdi’s generic from India.

(iii) Internet Association – Ellen Schrantz testified for the inclusion of following three points in the 2016 Special 301 Report

(a) Support Balance in Copyright : Limitations and Exceptions

( Support for fair use and other exceptions)

(b) Ancillary Copyright Laws : Issuance of warning to States that had enacted or were about to enact ancillary copyright laws.

Though Schrantz’s did not testify, Internet Association in it’s written submission has made an objection to India’s copyright regime. It relates to the absence of a clear safe harbor framework for online intermediaries.

(iv) U.S. – India Business Council (USIBC) – As per Buruc Kilic‘s tweet, USIBC in it’s testimony proposed for the introduction of patent linkage in India.

(v) Union for Affordable Cancer Treatment (UACT) – Last to testify, it came out strongly against PhRMA’s misrepresentation of the WTO rules on the issuance of compulsory licenses during national emergencies ( As evidenced by the opening quotation of this blog post.)

It also lauded Indian Supreme Court’s rejection of of the Bayer appeal of the Nexavar compulsory license.

CONCLUSION :

To the best of my knowledge, this is all that is available in the public domain for now. If any one of you attended the public hearing or happen to be in possession of it’s transcript, please feel free to share.

Once the recording is released by the USTR, I’ll run through the entire testimony on ISGLP’s IPR blog.

With the public hearing for the 2016 Special 301 Report going on at the USTR, I want to bring forth some pertinent statistics pertaining to the written submissions. These statistics have been deduced by me based on the written comments made as of February 19, 2016. To view the entire docket of the written comments made, visit here.

For a timeline of the 2016 Special Report, visit here. ( For more on the Special 301 Report, visit my post here and here. I also have a working Op-Ed in progress which I will share with the readers once it is published.)

STATISTICS:

Total Written comments received : 75 (Including notices of intent to testify and duplicate submissions)

Written comments serving as source of information for designating countries : 66

Notices of intent to testify and repetitions: 9

Number of organizations recommending India to be designated as a Priority Watch List Country (PWL) : 11

(It is pertinent to note that none of the trade groups have recommended India to be either designated as a Priority Foreign Country or as a Watch List Country. I’ve compiled a list of organizations that demand India to be designated as PWL alongwith their substantive areas of concern. Whether they recommended for heightened scrutiny by way of an Out- of-Cycle Review has also been included. The file is available here.)

Number of organizations that made no recommendation for countries to be designated but made adverse comments on India’s IPR framework : 5

A noteworthy aspect is the absence of Government of India to submit a notice of intent to testify at the public hearing. I’ll be covering the public hearing at ISGLP’s blog as soon as the details are in public domain. (the hearing is expected to continue until March 4th, 2016). Watch out for this space!

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